Walking the Line: Tracing the Science of Miller v. Alabama in State Appellate Opinions

Aliza Milner
Legal Writing Professor, Syracuse University College of Law

In Miller v. Alabama,[1] the U.S. Supreme Court announced that mandatory sentencing of a juvenile to life without parole violated the Eighth Amendment. The decision followed Roper v. Simmons[2] and Graham v. Florida,[3] which limited severe sentences for juveniles. Specifically, Roper banned the death penalty for juveniles[4] and Graham banned life without parole for juveniles convicted of non-homicide offenses.[5]Miller served both as a summary of these two, contemporary cases[6] and as a capstone for juvenile sentencing overall because it stated — and restated — that juveniles be treated differently at all sentencing proceedings.[7]

Following Miller, commentators wrote about the merits of the decision and where it would lead Eighth Amendment jurisprudence.[8] Along with the merits of Miller, though, I was also interested to learn how state appellate courts incorporated the decision into their own opinions. In other words, I set out to understand how lower courts wrote about this new, significant, and mandatory authority.

Miller, in particular, is worthy of this type of study because it concerns sentencing law, which judges regularly identify as the most difficult task of judging.[9] It is even more important when the sentence is for an offender who committed a crime as a juvenile. Of course, the appellate judge writing about Miller is not the trial judge who wrestled with which sentence to impose; the appellate judge only reviews the lower court’s decision. But whatever appellate judges miss in sentencing individual defendants, they make up for in the reach and power of their decisions. Appellate judges understand that what they say about Miller in a single opinion will affect many more future sentencing proceedings and appeals.

Moreover, Miller is interesting because it incorporated science and social science. Miller cited to one psychological study and referenced several more through its citations to Graham and Roper.[10] This followed a trend in Supreme Court decisions to cite science alongside traditional sources of support, like cases and law journals.[11] Though commentators have explored this trend,[12] less understood is how state appellate courts use empirical data, particularly when they are applying a Supreme Court decision that included it. Miller and her progeny presented just such an opportunity for consideration. Accordingly, this paper analyzes the use of science in state appellate opinions and offers a single, crystallized tracing of particular scientific language from one court to another.

When I began my review, I expected the state courts to grapple with the science cited in Miller. At least, I expected the state courts to cite, even if only as part of a string citation, some slivers of the scientific literature referenced in Miller (and discussed outright in Roper and Graham). Those expectations, however, were not met. The state courts almost never cite to the scientific studies referenced in Miller. Instead, they adopt the science, but with citation to the Supreme Court only. So, state courts repeat Miller’s statements about the social, emotional, and neurological capacities of juveniles.[13] And they may use this language in cases that are one-step removed from Miller, for example, in appeals that concern juveniles sentenced to long sentences that are not life sentences.[14] But the state courts rely on the Supreme Court as the authority for this scientific language. Also noteworthy, the state courts usually do not reference new scientific sources in their decisions.[15] They stick to the sources cited in Miller (and Roper and Graham), and venture no further.

The paper begins with two pieces of background information: a summary discussion of scientific references in appellate opinions and a review of Miller. Next, it explores the scientific language in Miller, highlighting those portions of the decision that have secured greatest devotion in the lower courts. It then discusses how the state courts use the science of Miller in their decisions. The analysis draws from state appellate courts, mostly the courts of last resort. It includes cases that concern the specific holding of Miller, as well as the next generation of Miller questions. The paper concludes with thoughts about why state appellate courts adopt, even copy Miller’s scientific language, without apparent pause.

Science in Appellate Opinions:

An appellate opinion answers the question presented on appeal. Although many rules and doctrines limit what appellate courts may consider on appeal,[16] once they have defined the question, courts are free to research and write the answer as they choose. The appellate judge chooses a style of writing, the organization for the opinion, and the sources cited in the opinion. Accordingly, the books[17] and articles[18] written about opinion writing are merely suggestions.

Nonetheless, we expect at least three things in a judicial opinion: a review of the facts that gave rise to the legal question, an answer (holding) to the question, and a reason (rationale) for the answer. To meet these expectations, judges rely on standard sources of information. First, to narrate the facts, appellate judges rely on the briefs and records that the litigants submit on appeal. Second, to answer the legal question, judges turn to cases, statutes, and law journals. Though judges begin their legal research with the sources cited in the parties’ briefs, they often research independently of the briefs, to arrive at a secure holding. For appellate panels, additional research may help convince colleagues to join the opinion. None of these activities are novel or controversial.

But what is new is the ease of opportunity for appellate judges to read facts that were not included in the record, either facts about the dispute or facts general to the topic of the dispute.[19] Specifically, beyond cases, statutes, and law journals, judges are reading material across the academic catalogue, notably in the fields of science and social science.[20] The Internet, of course, provides open access to empirical studies from all disciplines.[21] Judges and law clerks in the not-so-distant past could not find scientific studies in the courthouse library, or even a public library nearby. But today, the information is easily searchable online. Indeed, judges can find the empirical studies, or just summaries of those studies.[22]

Judges may read what they find on the Internet to help them understand the dispute before them. The material is background and informative. Indeed, Judge Posner encourages judges to read beyond the record if the parties have not provided sufficient background information.[23] He offers the example of United States v. Boyd,[24] in which the state charged the defendant with reckless endangerment for firing a gun. No picture was included in the record of the place where the gun was fired. Nor did the parties explain the gun’s capabilities.[25] Judge Posner unabashedly researched both omissions on the Internet and included what he found in the opinion.[26]

But what does it mean when appellate judges independently find factual information and use this information to support the holdings of opinions? Now, the factual source is more than background information; it advances the court’s reasoning and justifies why it holds as it does. If the source was not referenced in the briefs, the litigants have not had an opportunity to explain or refute it. And if the factual source that the judge found is scientific, the judge’s competency to read the source correctly may be in question.

Naturally, a chorus of commentators has sounded the dangers of judicial ventures into scientific literature and empirical data. How, for example, can we be sure that judges read the empirical studies correctly?[27] Judges are appointed or elected for many reasons, but statistical acumen is not chief among them.[28] Indeed, scientists and reformers who ordinarily would champion a particular empirical finding, may express concern when judges dabble with data in their opinions, even if it is favorable data. Some advocates for juvenile law reform, for example, worry that the Supreme Court’s discussion of developmental psychology has been selective and ultimately meager for true reform.[29]

And even if the judges read the data correctly, the results of the studies may not be reliable or withstand re-testing in later experiments.[30] Indeed, the goals of dispute resolution and science are not the same. Law prides itself on finality and predictability. By contrast, science evolves. Judges resolve disputes with the information they have at a certain point in time. Scientists seek new information and must tolerate change. Even at a practical level, the merger of law and science may be problematic. A legal researcher can easily learn whether a case has been overturned, but not so a scientific study. What should happen to a legal rule that is supported by faulty data?[31]

Moreover, once included in an appellate opinion, the empirical study is ripe for casual plucking in future opinions. The first appellate judge cites to a study. The second judge uses the study to reason to a holding. The third judge references the content of the study, but not the study itself. By the third, fourth, or fifth generation of citations, the original study is lost, even as its content has become precedential. The use of the study has become, in the words of Allison Orr Larsen, “factual precedent,” which “refers to the citation in a lower court opinion of a higher court’s generalized factual claim.”[32] It is “the tendency of lower courts to over-rely on Supreme Court opinions and to apply generalized statements of facts from old cases to new ones.”[33] So, for example, “a statistical study on neuroscience or climate change, if approved by the U.S. Supreme Court, can seem safely vetted to a lower court that knows nothing about the subject.”[34]

Note that without reading the study itself, the later judges rely on an earlier judge’s interpretation of the data. Note, too, that respect for the study and any use of the study in earlier cases will be unwarranted if the original source was, in fact, unreliable.[35] Indeed, the scientists cited in the first instance may never have intended their research to last in perpetuity. Regardless, the scientific findings have intertwined with the legal rule it was intended to support; scientific fact and legal rationale have merged into a single, quotable idea.

Miller was written in the midst of this discussion about science in appellate opinions. Because it involved juvenile sentencing, it invoked the science and social science of adolescent development. And because it concerned the Eighth Amendment, the case would have serious precedential effect. A close reading of Miller, therefore, is vital to trace its later incantations.

Miller v. Alabama:

Miller is a blessedly cogent and organized opinion.[36] It was a consolidated appeal of two defendants, Evan Miller from Alabama and Kuntrell Jackson from Arkansas.[37] Both defendants were sentenced to life without parole for murders they committed when they were fourteen years old, and both were sentenced under statutory schemes that mandated, without alternative options, the life without parole sentence.[38] Miller was sentenced for the murder of his neighbor, Cole Cannon,[39] Jackson for the murder of a store clerk, Derrick Shields.[40]

After describing Miller’s and Jackson’s crimes, the opinion reviewed Eighth Amendment jurisprudence, including the Amendment’s ban against cruel and unusual punishment and its demand for proportional sentencing.[41] This principle of proportionality, the opinion explained, limited sentencing in two ways. It prohibited (1) sentences that did not reflect the culpability of a category of offenders, and (2) capital punishment in certain cases, when it was imposed as a mandatory sentence, without consideration of the offense or the defendant’s circumstances.[42] As juveniles, Miller and Jackson invoked the first prohibition,[43] and sentenced to life without parole, the Court suggested, they invoked the second prohibition, as well.[44]

The Court reviewed each limitation on sentencing in turn. First, in discussing the prohibition against sentences for categories of offenders, the Court concentrated on Roper, which barred capital punishment for juveniles, and Graham, which prohibited a sentence of life without parole for juveniles convicted of non-homicide crimes. The Court explained that these cases inferred that “children are constitutionally different from adults for purposes of sentencing.”[45]

When the Court turned to the second way that Eighth Amendment proportionally limited sentencing, it conceded the difference in Miller’s and Jackson’s case: they were not sentenced to death. Quoting Graham, however, the Court reiterated that life without parole is akin to the death penalty.[46] Both sentences are “irrevocable.” [47] Moreover, the Court reasoned that the younger the offender, the more time he or she spends in jail for a life sentence. Thus, life without parole is a harsher sentence for juveniles, as compared to adults.[48]

Next, having equated capital punishment with life without parole, the Court applied the standards for sentencing in capital punishment to the sentencing of juveniles to life without parole.[49] This meant that juveniles could not be sentenced to life without parole without consideration of their individual character and circumstances.[50] They could not, as the Court explained, be sentenced without considering “an offender’s age and the wealth of characteristics and circumstances attendant to it.”[51]

How a sentencing judge should consider these factors is less clear. The Court reviewed cases in which the lack of certain considerations invalidated the sentence.[52] For example, it described a sentence that was invalid because the judge did not consider that the juvenile was abused and neglected as a child.[53] The Court also described what a mandatory sentencing scheme ignores, such as a defendant’s chronological age, immaturity, family environment, leanings to peer pressure, incompetence speaking with law enforcement, and chance for rehabilitation.[54] Thus, the opinion suggested how a sentencing court could fail at sentencing a juvenile, but it did not affirmatively declare what a court should do to succeed.[55]

Upon twin branches of proportionality — categorical bans for juveniles and special consideration for capital cases — the Court rested its conclusion that Miller and Jackson were not sentenced in accord with the Eighth Amendment.[56] In fact, the Court stated its holding four times in the opinion.[57] Each statement highlighted the mandatory nature of Alabama’s and Arkansas’s sentencing scheme as the decisive, Constitutional flaw. It is noteworthy that the Court expressly declined to consider whether the Eighth Amendment categorically barred life without parole for all juveniles or for juveniles age fourteen and younger.[58] But, it did not hide its distrust of these types of sentences. Indeed, with oft-repeated words,[59] it predicted that a sentence for a juvenile of life without parole would be “uncommon” and could happen only after the sentencing judge had “taken into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”[60]

Science in Miller v. Alabama:

My particular interest in this survey was how state appellate courts grappled with the social science included in Miller. A logical starting point would be Miller’s discussion of adolescent characteristics and development. But even a cursory scan of the citations in Miller demonstrates that the Court recycled concepts from Roper and Graham. Thus, to understand Miller’s portrait of adolescence is also to unravel the threads of social science and neuroscience[61] first stitched in Roper and Graham.

For example, the Court in Miller summarized three reasons for treating children and adults differently. First, children are immature, which can make them reckless and impulsive.[62] This reason held particular sway, as the Court mentioned it four times in Miller.[63] Second, children are vulnerable to peer pressure and lack control over their environment.[64] Finally, a child’s character is not as[65] fixed as an adult’s character.[66] Roper first articulated all three of these reasons.[67] Though Roper supported each reason with a source from social science,[68]Miller simply cited to Roper.[69]

A second example is Miller’s explanation of the brain differences between adults and children. Miller quoted Graham for the point that studies of the brain showed “fundamental differences between juvenile and adult minds.”[70]Graham had cited to the amici briefs of the American Medical Association and the American Psychological Association.[71]Miller, though, cited only to Graham.

Actually, in the text of the majority opinion, Miller cited to only one social science source, a 2003 article discussing patterns of criminal behavior among adolescents.[72]Roper had previously cited the same source. In a footnote, the Miller Court referred to further studies that the amici briefs reviewed. The Miller Court explained:

The evidence presented to us in these cases indicates that the science and social science supporting Roper’s and Graham’s conclusions have become even stronger. See, e.g., Brief for American Psychological Association et al. as Amici Curiae 3 (“[A]n ever-growing body of research in developmental psychology and neuroscience continues to confirm and strengthen the Court’s conclusions”); id., at 4 (“It is increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance”); Brief for J. Lawrence Aber et al. as Amici Curiae 12-28 (discussing post-Graham studies); id., at 26-27 (“Numerous studies post-Graham indicate that exposure to deviant peers leads to deviant behavior and is a consistent predictor of adolescent delinquency” (footnote omitted)).[73]

Thus, Miller respected Roper’s statements about the differences between adults and adolescents. And it confirmed Graham’s reading of neuroscience. It added no new scientific sources to the mix, but referred, by footnote, to the amici’s reading of contemporary social science literature.

That adolescents are generally less mature, less independent, and more subject to change than adults, is not controversial. Most people will trust these statements without scientific literature to back them up. They are, as Miller quipped, notions of “common sense.”[74] Also, the science of brain development may well be confirmed. Still, it should be noted that the Court in Miller did more than compare adults and adolescents, generally. It repeated the statements from Roper and Graham to uphold the conclusion that all juveniles must be treated differently from adults at sentencing and no juvenile can be given a mandatory sentence of life without parole. It left no space for the specific juvenile who was mature, independent, or fully formed in character.[75] The Court also declined to explain differences among adolescents, for example, between thirteen-year-olds and seventeen-year-olds,[76] or between boys and girls.[77]Given that the citations to actual scientific studies were few, and the discussion of adolescent development was general and broad, how would the state appellate courts use Miller in their own opinions?

Science in Miller’s Progeny:

Miller affected twenty-eight states[78] and the federal government.[79] Several states responded with legislation,[80] but many more jurisdictions saw Miller tested in their state appellate courts. Indeed, there are several hundred state court opinions citing Miller.[81] Given the nuance of appellate practice, particularly for Constitutional law, it would be difficult to catalog every type of issue raised in the post-Miller appeals. But the cases may be broadly grouped into five categories. First, courts grapple with the clear dictate of Miller, namely, mandated sentences of life without parole for juveniles. An appeal of this sort considers whether the state’s sentencing scheme is mandatory and what remedy is appropriate if it is mandatory.[82] Second, the states have considered whether Miller applies to adult offenders.[83] Third, the holding in Miller soon raised the question of whether life meant only life or effectively life.[84] Could a seventeen-year-old facing eighty years in prison find refuge in Miller? Similarly, a fourth type of question asks whether Miller applied to all mandatory sentences for juveniles, even those that did not involve life-long prison terms.[85] Pennsylvania, for example, considered Miller in judging the constitutionality of a sex offender registration law as applied to juveniles.[86] Finally, a pressing post-Miller question is whether the decision carries retroactive application.[87][88]

Across the spectrum of these appeals, the treatment of Miller’s language is devotional. Many state appellate courts give lengthy descriptions of Miller, specifying both the facts of the case and its legal analysis.[89] This is true even if the state court has previously addressed Miller in a recent appeal and there provided a full review of the decision.[90] Appellate courts also quote from the decision heavily; long block quotes are common. Indeed, the length of a Miller discussion prompted one dissenter to regret the majority’s provision of “pages of material” beyond the “straightforward” remedy suggested in the appeal.[91]

Of particular interest here, Miller’s language about the difference between adults and juveniles[92] has become nearly sacrosanct. Appellate courts across the country have adopted these principles of difference with quotations or close paraphrasing of Miller’s words. So, for example, courts refer to the “inherent differences between juveniles and adults,”[93] “the typical characteristics of youth,”[94] and the “three critical distinctions between children and adults.”[95] The following example is also representative:

The Court in Miller reasoned that Graham and Roper established that “children are constitutionally different from adults for purposes of sentencing.” Specifically, the Court in Miller noted that compared to adults, children lack maturity and have an underdeveloped sense of responsibility, are more vulnerable to outside influences and pressures, and have yet to fully develop their character. Because of these differences, the Court reasoned juveniles have “diminished culpability and greater prospects for reform.”[96]

Note that this sample opinion cited to Miller and referenced Roper and Graham. It did not cite directly to any scientific literature. This is the most common way that the state courts discuss the reasoning of Miller.

Occasionally, a state appellate court will go a little further in discussing the social science of Miller. In directing the amendment of a juvenile sentence, for example, an Indiana court wrote: “This presumption that juveniles are generally less culpable than adults is based on previous and ongoing “‘developments in psychology and brain science’” which “‘continue to show fundamental differences between juveniles and adult minds”’ in, for instance, “‘parts of the brain involved with behavior control.’”[97] Here too, though, the state court cited to Miller only, not the underlying “developments” in neuroscience. Indeed, this court noted agreement among the Supreme Court justices about the traits of adolescence, even if they disagreed about the reading of the Eighth Amendment. The significance, then, was the justices’ assessment of adolescent development, not the studies of development themselves.[98]

Similarly, consider this summary from the Supreme Court of South Dakota:

Juvenile offenders warrant special consideration because “children have a lack of maturity and an underdeveloped sense of responsibility . . . , are more vulnerable to negative influences and outside pressures . . . , [and] a child’s character is not as well formed as an adult’s [.]” Id. at ––––, 132 S.Ct. at 2464 (quoting Roper, 543 U.S. at 569–70, 125 S. Ct. at 1183) (internal quotation marks omitted). The United States Supreme Court rested the Roper, Graham, and Miller decisions on science and social science, quoting neurological, psychological, and sociological studies pertaining to children, their culpability, and their decision-making processes. Id.[99]

Again, we see the state court adopting the language of Miller and alluding to the science that supported the Miller holding. Again, though, there is no effort to explain the limits or nuances of this science.

Given the tendency of appellate courts to parrot Miller’s discussion of adolescent development, it became unsurprising that these courts rarely included citations to empirical sources that were not included in Miller. Indeed, it is unusual to find even mention of a scientific study in the Miller progeny. But, there were two noteworthy exceptions. State v. Null provided a full description of the studies upon which Miller relied.[100] The court in Null specifically referenced two of the studies used in Roper, the amicus brief about developmental psychology in Graham, and Miller’s recap of the “scientific underpinnings.”[101]

Null continued with three paragraphs of original discussion about the literature of adolescent development.[102] It noted, for example, “that juveniles achieve the ability to use adult reasoning by mid-adolescence, but lack the ability to properly assess risks and engage in adult-style self-control” and that “identity development, which is often accompanied by experimentation with risky, illegal, or dangerous activities, occurs in late adolescence and early adulthood.”[103] The court devoted a full paragraph to adolescent brain development:

As the body of psychosocial studies grows, so too does the understanding of the implications of adolescence. For instance, the human brain continues to mature into the early twenties. Much of this development occurs in the frontal lobes, specifically, in the prefrontal cortex, which is central to “executive functions,” such as reasoning, abstract thinking, planning, the anticipation of consequences, and impulse control. Recent studies show that through adolescence and into early adulthood, the regions of the brain and systems associated with impulse control, the calibration of risk and reward, and the regulation of emotions undergo maturation. In short, “[t]he research clarifies that substantial psychological maturation takes place in middle and late adolescence and even into early adulthood.”[104]

After reading case after case of recycled Miller quotations without reference to the original scientific sources, Null’s discussion was remarkable. It should be noted that Null relied on the same authors[105] touted by the Supreme Court, but the authors are prominent in the fields of adolescent development and juvenile law reform. And at least the court in Null referenced sources that the Supreme Court had not cited.[106] Indeed, the court independently surveyed the pool of developmental literature and incorporated fresh language into its opinion.

Diatchenko v. District Attorney is another exception. There, the highest court in Massachusetts noted the Supreme Court’s reference to “the expanding body of research in developmental psychology and neuroscience showing fundamental differences between juvenile and adult brains.”[107] In a footnote, it cited a prominent source cited in Roper,[108] and two more sources that the Supreme Court had not cited in Roper, Graham, or Miller.[109] Indeed, the Massachusetts court included one source that was published after Miller. As in Null, this court read beyond Miller and cited independently of Miller.

Thus, this review demonstrates how statements of fact become precedential in later decisions. Miller adopted the statements of Roper and Graham. Then, the state courts, notwithstanding a few exceptions, adopt the same statements in their own opinions. The original sources of fact go un-cited as the Supreme Court’s language gradually becomes inviolate. This is meaningful for juvenile sentencing because although the Supreme Court has described principles of adolescent development as “common sense,” the science of development may be more nuanced and particular than a common understanding would allow. [110]

Explaining The Trace:

Why, then, are state courts adopting facts as precedent and why are the discussions in Null and Diatchenko exceptional, rather than standard? One answer requires a wide angle. The state appellate courts write decisions every day, beyond Miller, of course. The mimicry they show in writing about Miller only represents how they write across their dockets. Specifically, the use of science in appellate opinions is part of a larger discussion about how writing opinions has changed with the advent of computers and online legal research.[111] Everything is easy to find on the Internet, and most of the information can be cut and pasted from the Internet into a draft document. This may explain why opinions are longer than they were in the past.[112] It may also explain why appellate opinions read as reprocessed and imitative of the precedent they cite.[113] If the author of the new opinion proceeds from a copy of an older opinion, the echo of the original will linger.[114]

Moreover, so far I have written of appellate judges reading, researching, thinking, and drafting. We know, though, that law clerks are completing these activities with their judges, or instead of their judges.[115] And law clerks, raised on computer research and writing, arguably are more inclined to copy and paste. More condemning is the suggestion that inexperience leads law clerks to analyze material superficially. They may compound a weak analysis with writing methods that are rote and dull.[116]

Another explanation is that it matters how appeals are presented to the state appellate courts. Amicus briefs are less prevalent in the state appellate courts as compared to the federal courts, especially the U.S. Supreme Court.[117] If the parties do not provide citation to fresh sources in their briefs, the appellate courts may be reluctant to search independently.[118] The judges, in other words, may not heed Judge Posner’s call to find relevant, empirical data on their own.[119] Moreover, many of the post-Miller appeals arrive in state court dressed in federal garb. The briefs focus mostly, or only, on federal precedent with state law included as a postscript.[120] Absent a strong link to state law, for which, after all, the state judges would be experts, the judges may lack motivation to research fresh sources that are particular to their appeals and not included in Miller.

Perhaps, though, the very magnitude of Miller leads state appellate judges to write about it cautiously and unoriginally. True, Miller stated its holding four times. But also true, the rationale for the decision, including the differences between juveniles and adults, could apply more broadly, beyond life without parole sentencing. Each post-Miller appeal, then, is an encounter between a defined holding and a broader underlying objective. Each appellate court must reconcile these two parts. The court, in other words, must decide how much of Miller is Miller — which language in the opinion is mandate and which is motivational.

For a court that is apprehensive about misapplying Miller, a safe course would be to copy Miller’s language. This would also be the chosen course for a court that wants to explain Miller with greatest precision. Consider the example of State v. Hart, [121] when the court explained the difference between the categorical bar of Roper and the procedural mandate of Miller. The court wrote: “Rather than attempt to characterize or paraphrase this essential point, however, it is better to let Miller speak for itself.”[122] The court then included a lengthy quote from Miller.

It is also true that when a court favors the import of Miller and wants to extend its protective reach for juveniles, the scientific language in Miller will be most helpful. Consider again the decision of State v. Null.[123] The sentence for Null was not life without parole, but an aggregate sentence of seventy-five years. The appeal asked whether this lengthy sentence, which could be effectively a life sentence for a juvenile, warranted Miller’s protections. The court “recognize[d] that some courts have viewed Miller more narrowly, holding that it applies only to mandatory sentences of life without parole.”[124] But the Iowa Supreme Court thought “these cases seek to avoid the basic thrust of Roper, Graham, and Miller by refusing to recognize the underlying rationale of the Supreme Court is not crime specific.”[125] The “underlying rationale,” of course, refers to the scientific language in Miller.

A year after Null, the Iowa Supreme Court again relied on the rationale in Miller to hold in State v. Lyle[126] that all mandatory minimum sentences for juveniles violated the Iowa Constitution. The rationale of Miller, those three enumerated differences between adults and adolescents, had become “scientific data” making a “compelling and increasingly ineluctable case” that juveniles conduct could not warrant mandatory-minimum punishment.[127] For Iowa, then, the rationale of Miller, specifically the science of juvenile development, held value independent of the defined holding of Miller. Naturally, the Iowa court used the language from Miller that reinforced its new and dramatic holding.

* * *

State appellate courts have adopted the scientific language in Miller with apparent ease, even though the science in Miller would seem to require careful scrutiny. Miller’s trail, though, is far from over. The opinion remains important because questions abound as to whether it applies retroactively, whether it applies beyond mandatory sentencing, and whether it applies beyond juveniles. To answer these questions, state courts will have the opportunity to return to the language in Miller, untangle its threads of science, and set the path for its future meaning.

[7]See id. at 2468, 2470. See also State v. Lyle, 854 N.W.2d 378, 395 (Iowa 2014) (“[The Court] arrived at its conclusion not merely by relying on Roper and Graham but by weaving together ‘two strands of precedent.’”). Compared to Roper and Graham, Miller also affected more prisoners. Roper affected 72 inmates. See Charles Lane, 5-4 Supreme Court Abolishes Juvenile Executions, Washington Post, Mar. 2, 2005. Graham affected 123 inmates. Graham, 560 U.S. at 64. Miller, on the other hand, had the potential to reach at least 2,000 people serving life sentences without the possibility of parole. See Miller, 132 S. Ct. at 2477 (Roberts, J. dissenting).

[9] See, for example, Benjamin Weiser, A Judge’s Education, One Sentence at a Time, N.Y. Times, Oct. 9, 2011, which reviewed the reporter’s interviews about sentencing with Judge Denny Chin, who sat on the U.S. District Court in the Southern District of New York. Judge Chin identified sentencing as “the hardest thing” about judging because “there is so much at stake” and “there are so many different considerations that come into play.” Id.

[14]See, e.g., State v. Ragland, 836 N.W.2d 107, 121 (2013) (citing Miller for “children’s diminished culpability and heightened capacity for change” and applying Miller to strike down a sentence for a juvenile of life without parole for sixty years).

[21]See Larsen, supra note 11, at 101 (“Supreme Court factfinding has changed since the dawn of the digital revolution. . . . Supreme Court Justices, like the rest of us, are now surrounded by factual information literally at their fingertips. They no longer need to rely predominately on the adversarial system to supply evidence on factual questions; they can just Google for data, empirical studies, claims in secondary sources, and newspaper accounts.”) (footnote omitted); see also Posner, supra note 17, at 134; Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, 28 Litig. R. 131 (2008).

[26]See id. at 876, 878-79. The opinion noted the omissions in the record and corrected for them by including a satellite image of where the shots were fired, as well as the manufacturer’s specifications for the gun. Still, the Court upheld the conviction “[d]espite these gaps” because the defendant created the requisite risk of bodily injury. Id. at 878-79.

[27]See Roper, 543 U.S. at 617 (Scalia J., dissenting) (lamenting that “the Court looks to scientific and sociological studies, picking and choosing those that support its position” and not explaining “why those particular studies are methodologically sound”); Posner, supra note 17, at 70-71 (critiquing the Supreme Court’s use of developmental science in Roper); Emily Buss, What the Law Should (And Should Not) Learn From Child Development Research, 38 Hofstra L. Rev. 13, 37 (2009) (“[C]ourts and lawyers have little ability to assess the quality and applicability of social science, particularly when it has not been tested through the adversarial process.”).

[30]See Buss, supra note 27, at 10 (noting “the likelihood (even the expectation) that the science will continually change, threatening either the stability or the legitimacy of the law”); Larsen, supra note 11, at 102 (“A fact considered true in 1955 may seem laughable in 2015.”).

[32] Larsen, supra note 11, at 73-74; see also Slobogin, supra note 12, at 427-28 (suggesting a “scientific stare decisis,” so that “two conditions that are scientifically alike ought to be treated the same for legal purposes, in the same way that legal stare decisis requires two similar factual situations be resolved in the same way”).

[36] Consider this praise from Lincoln Caplan, The Talented Justice Kagan, N.Y. Times, June 29, 2013: “I have been writing about the court the past three terms, and reading her prose has been as enjoyable as watching her in action. No previous justice has written with her emphasis on the vernacular or so matter-of-factly addressed readers as if our views about a case truly mattered.”

[39] A jury convicted Miller of murder in the course of arson. The intermediate appellate court in Alabama affirmed the sentence in an unreported opinion, and the state court of last resort declined his petition for review. Miller next challenged his sentence on direct review to the U.S. Supreme Court. Miller, 132 S. Ct. at 2463.

[40] A jury convicted Jackson of felony murder and aggravated robbery. He did not appeal the sentence, though he did challenge the conviction, unsuccessfully, in the Arkansas Supreme Court. Jackson brought a collateral challenge to his sentence following the Supreme Court’s decision in Roper. Miller, 132 S. Ct. at 2461. Thus, two aspects complicated Jackson’s appeal: he was convicted under a doctrine of felony murder because he did not shoot the fatal shot, see id. at 2475-77 (Breyer J., concurring), and he challenged his sentence with a collateral, rather than a direct, attack.

[50]Id. Specifically, the Court applied the requirement from capital punishment that a juvenile be sentenced to life without parole, only after an opportunity to present mitigating evidence. See id. (citations omitted).

[55] States may require discussion of the defendant’s age in a pre-sentence report. See, e.g., State v. Riley, 110 A.3d 1205, 1216-17 (Conn. 2015).

[56] In Part III of the decision, the Court also responded to the argument that the Court upheld mandatory sentencing in other contexts and that judges considered Miller’s and Jackson’s age when they chose to transfer them from juvenile to adult court. See Miller, 132 S. Ct. at 2470-75.

[57] In the first paragraph of the opinion, the Court stated: “We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishment.’” Id. at 2460. Then, when it began to introduce the proportionality principle of the Eighth Amendment, the Court stated: “Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violates the Eighth Amendment.” Id. at 2464. At the end of that discussion, it stated the holding for the third time as: “We therefore hold that the Eight Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Id. at 2469. Finally, in the last paragraph of the majority opinion, the Court reinforced that the sentencing court must have opportunity to consider “mitigating circumstances.” Because Miller and Jackson were sentenced under statutes that required they be sentenced to life without parole, without consideration of mitigating circumstances, their sentences violated the Eighth Amendment. Id. at 2475.

[58]Miller, 132 S. Ct. at 2469 (“[W]e do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.”)

[61] An interesting distinction, worthy of further study is between advocates’ and judges’ treatment of science and social science. For example, during oral argument for Roper, Seth Waxman on behalf of the juvenile stated: “And — and the very fact that science — and I’m not just talking about social science here, but the important neurobiological science that has now shown that these adolescents are — their character is not hard-wired.” Transcript of Oral Argument at 40, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633).

[63]See id. at 2464 (“‘children have ‘a lack of maturity and an underdeveloped sense of responsibility,”’ leading to recklessness, impulsivity, and heedless risk-taking”) (“those findings . . . of transient rashness, proclivity for risk, an inability to assess consequences”), 2465 (“their immaturity, recklessness, and impetuosity”), 2467 (“It is a time of immaturity, irresponsibility, ‘impetuousness[,] and recklessness.’”).

[65] “As” was an important word, indeed, because it suggested that an adult’s character may also be unsettled and amenable to change. Accordingly, advocates have tried to extend Miller to adults. See infra note 79, 83.

[74]Miller, 132 S. Ct. at 2464. See also id. at 2480 (Roberts, C.J. dissenting) (stating “teenagers are less mature, less responsible, and less fixed in their ways than adults – not that a Supreme Court case was needed to establish that”).

[85]See, e.g., State v. Lyle, 854 N.W.2d 378 (Iowa 2014) (holding that all mandatory minimum sentences of juveniles violated the Iowa Constitution); James v. United States, 59 A.3d 1233, 1236-37 (D.C. 2013) (“Appellant stressed the mandatory nature of his sentence in his brief, but a mandatory minimum of thirty years is different in kind than a mandatory minimum of life in prison.”); State v. Dull, 291 P.3d 1073 (Kan. Ct. App. 2013) (distinguishing sentencing a juvenile to mandatory life without parole for murder from mandatory lifetime supervision for a sexual offense).

[86]See In re J.B., 107 A.3d 1 (Pa. 2014) (holding that the sexual registration law was unconstitutional as applied to juveniles).

[98] Similarly, in State v. Houston, No. 20080625, 2015 WL 773718, *13 (Utah Feb. 24, 2015), the majority opinion explained that Miller’s “conclusions” about youth “were informed by science and social science, including longitudinal studies and brain mapping.” The majority cited Miller, not the social science literature cited in Miller. See id. But, the dissenting opinion in Houston quoted and discussed actual social science literature, some of which Roper and Miller included, and some of which the Supreme Court had not previously cited. See id. at *64-65 (Durham, J. dissenting).

[111]See Larsen, supra note 11, at 74-75 (summarizing scholarship about how online legal research has changed legal writing). The phenomenon is not in law alone. Consider Leon Wieseltier, Among the Disrupted, N.Y. Times, Jan. 7, 2015.

[112]See Richard A. Posner, Judges’ Writing Styles (And Do They Matter?), 62 U. Chi. L. Rev. 1421 (1995) (suggesting that when judges use a “pure” style of writing and a “formalist” style of legal reasoning, they quote and cite more and issue longer opinions).

[118] For an example of how litigants may beef up the record for appeal, seeIn re J.B., 103 A.3d at 9-10, which concerned the constitutionality of Pennsylvania’s Sex Offender Registration and Notification Act, as applied to juvenile offenders. In that case, the trial court dutifully cited Miller for the “three critical distinctions between children and adults.” Id. at 9. But the trial court also had “research included in the stipulated record” that “supported the United States Supreme Court’s holdings regarding juveniles.” Id at 10. Specifically, this research described how sex offender registration affected the health of juveniles — that it led to “depression, isolation from society, and in some cases, an increased risk of other criminal acts.” Id. The appellate opinion goes on to provide a full paragraph using new, empirical data that was not recycled from the Supreme Court opinion. Id. at 17-18.

[120]See, e.g., Bear Cloud, 334 P.3d at 137 (declining to address the sentencing question under the Wyoming Constitution because “Mr. Bear Cloud makes no more than a passing reference to the protections that might be afforded by our state constitution”); Chambers, 831 N.W.2d at 331 (noting that “[t]he parties here did not brief other potential avenues for relief under Minnesota law”); Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013) (noting that for the state constitutional claim, appellant did not provide “a fully developed analysis”). But seeDiatchenko, 1 N.E.3d at 282 (holding that the subject sentence violated the Eighth Amendment and “the analogous provision of the Massachusetts Declaration of Rights”). Consider the state pride noted in Patterson, 25 N.E.3d at 549, in which the Supreme Court of Illinois proudly referenced state precedent that “substantially anticipat[ed] the Supreme Court’s view” about juvenile sentencing. See also People v. Davis, 6 N.E.23d 709, 723 (Ill. 2015) (likewise highlighting Illinois law pre-Miller).

[125]Id.; see also Aiken, 765 S.E.2d at 577 (recognizing that Miller strictly applied to a sentence of mandatory life without parole, but extending the holding to a sentence of non-mandatory life without parole to “give effect to the proportionality rationale integral to Miller’s holding – youth has constitutional significance”).